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HB 213 2012

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A bill to be entitled An act relating to judicial proceedings; providing a short title; specifying public policy concerning alternatives to mortgage foreclosure; amending s. 48.23, F.S.; providing that if the holder of an unrecorded interest or lien does not intervene in certain proceedings concerning property subject to a lis pendens before the occurrence of judicial vesting pursuant to s. 702.068, F.S., of the property described in the notice, the property shall be forever discharged from such unrecorded interests and liens; amending s. 201.02, F.S.; deleting an obsolete provision; providing the documentary stamp tax for a final judgment of foreclosure vesting title in a lender under a specified provision for foreclosure without public sale; amending s. 701.04, F.S.; revising the time period in which an estoppel statement must be provided; revising the allowable methods of delivery and contents of an estoppel statement; prohibiting a fee for an estoppel statement in certain circumstances; providing a fee for failure to deliver certain documents within a specified period; providing a limit on such fees; providing that specified persons may rely on an estoppel statement; requiring a specified certification if the person or party executing a satisfaction is not shown as the owner of the mortgage in the official records; requiring specified requests for an estoppel statement Page 1 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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to include a copy of instruments showing an ownership interest in the property; revising requirements for a person required to acknowledge satisfaction of the mortgage, lien, or judgment; providing for actions to compel compliance; providing for attorney fees; creating s. 701.045, F.S.; requiring preparation and recording of an instrument acknowledging satisfaction of the lien or judgment upon full payment; requiring a copy of the recorded satisfaction provided to the person making the full payment within a specified period; providing for civil actions for compliance; providing for attorney fees; providing for responsibility for return of satisfaction when an execution has been issued and a judgment has subsequently been fully paid; providing for compliance with specified provisions relating to amendment of a judgment lien file; creating s. 702.015, F.S.; providing requirements for a complaint which seeks to foreclose a lien on real property; providing requirements for a complaint that includes a count to enforce a lost, destroyed, or stolen instrument; amending s. 702.035, F.S.; requiring the foreclosing party in a mortgage foreclosure action involving specified occupied dwellings to provide notice to certain persons; specifying the contents of such notice; providing for notice to tenants of such buildings in foreclosure; specifying the contents of such notice; creating s. 702.036, F.S.; providing for Page 2 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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finality of mortgage foreclosure judgments; requiring certain actions to set aside, invalidate, or challenge the validity of a final judgment of foreclosure of a mortgage or to establish or reestablish a lien or encumbrance on the property in abrogation of the final judgment of foreclosure of a mortgage to be treated as actions for monetary damages only in certain circumstances; providing that certain persons be considered persons affiliated with the foreclosing lender for specified purposes; prohibiting claims by persons claiming to have actual promissory notes following foreclosure of a mortgage based upon the enforcement of a lost, destroyed, or stolen note; amending s. 702.04, F.S.; revising procedural provisions for foreclosure of lands in different counties; amending s. 702.06, F.S.; deleting references to actions at common law for deficiencies and original mortgagees; providing requirements for deficiency decrees in foreclosures of certain owneroccupied dwelling units; providing applicability; creating s. 702.062, F.S.; providing for extensions of time for a party to respond to an initial complaint in certain foreclosure proceedings; providing for notice when all parties have been served personally and no party defendant has filed an answer or other response denying, contesting, or asserting defenses to the plaintiff's entitlement to the foreclosure in certain circumstances; providing for entry of defaults against Page 3 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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nonresponding parties; providing for requests for case management conferences; providing for extensions or stays in certain circumstances; amending s. 702.065, F.S.; revising requirements for considering a mortgage foreclosure proceeding uncontested; providing requirements for determination of reasonable attorney fees for foreclosures of certain residential properties; deleting provisions relating to defaults in uncontested mortgage foreclosure proceedings and liquidated damages; creating s. 702.068, F.S.; providing for an election by a foreclosing lender to proceed without public sale in certain circumstances; providing for notice of such an election; specifying the contents of such notice; providing for a demand for a public sale by a party; providing for disposition of proceeds of a public sale; providing for entry of final judgment; providing for redemption of property in certain circumstances; providing for deeming a debt satisfied in certain circumstances; allowing for pursuit of a deficiency if a party defendant elects to proceed without a public sale; amending s. 702.10, F.S.; revising requirements for proceedings for requests for a hearing to show cause after a complaint in a foreclosure proceeding has been filed which is verified in the form of an affidavit sufficient to support a motion for summary judgment; providing for a summons; providing for waiver of the right to be heard at a hearing to show cause in Page 4 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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certain circumstances; revising terminology to allow for cases in which there are multiple defendants; providing for a rebuttable presumption that certain properties are homestead properties; providing for applicability of other procedures; creating s. 702.11, F.S.; providing requirements for reasonable means of providing adequate protection under s. 673.3091, F.S., in mortgage foreclosures of certain residential properties; providing for liability of persons who wrongly claim to be holders of or entitled to enforce a lost, stolen, or destroyed note and caused the mortgage secured thereby to be foreclosed in certain circumstances; creating s. 702.12, F.S.; providing for attorney fees as sanctions for raising unsupported claims or defenses; providing exceptions; providing for damages for delay of litigation; specifying that the act does not apply to foreclosures of timeshare interests under specified provisions; providing a directive to the Division of Statutory Revision; providing applicability; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Foreclosure Act." Section 2. The public policy in this state is to encourage borrowers and lenders to work out alternatives to mortgage foreclosure before filing suit and to explore possible Page 5 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 This act may be cited as the "Florida Fair

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settlements in mediation. Once suit has been filed, the public interest is served by maintaining the strong tradition of judicial due process in mortgage foreclosure cases while moving mortgage foreclosure cases to final resolution expeditiously in order to get real property back into the stream of commerce, but to do so consistent with due process and fundamental fairness and without impairing the ability of the courts to manage their dockets and schedules. This act is an effort to provide additional tools to the courts to assist in achieving such a balance. Section 3. 48.23 (1) (d) Except for the interest of persons in possession or easements of use, the recording of such notice of lis pendens, provided that during the pendency of the proceeding it has not expired pursuant to subsection (2) or been withdrawn or discharged, constitutes a bar to the enforcement against the property described in the notice of all interests and liens, including, but not limited to, federal tax liens and levies, unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a public judicial sale or judicial vesting pursuant to s. 702.068 of the property described in the notice, Page 6 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 Paragraph (d) of subsection (1) of section 48.23, Florida Statutes, is amended to read: Lis pendens.

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the property shall be forever discharged from all such unrecorded interests and liens. If the notice of lis pendens expires or is withdrawn or discharged, the expiration, withdrawal, or discharge of the notice does not affect the validity of any unrecorded interest or lien. Section 4. 201.02 (1)(a) Subsections (1) and (9) of section 201.02, Florida Statutes, are amended to read: Tax on deeds and other instruments relating to real On deeds, instruments, or writings whereby any property or interests in real property. lands, tenements, or other real property, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or any other person by his or her direction, on each $100 of the consideration therefor the tax shall be 70 cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 70 cents for each $100 or fractional part thereof of the consideration therefor. For purposes of this section, consideration includes, but is not limited to, the money paid or agreed to be paid; the discharge of an obligation; and the amount of any mortgage, purchase money mortgage lien, or other encumbrance, whether or not the underlying indebtedness is assumed. If the consideration paid or given in exchange for real property or any interest therein includes property other than money, it is presumed that the consideration is equal to the fair market value of the real property or interest therein. Page 7 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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(b)1. a.

For purposes of this paragraph, the term:

"Conduit entity" means a legal entity to which real

property is conveyed without full consideration by a grantor who owns a direct or indirect interest in the entity, or a successor entity. b. parties. 2. When real property is conveyed to a conduit entity and all or a portion of the grantor's direct or indirect ownership interest in the conduit entity is subsequently transferred for consideration within 3 years after of such conveyance, tax is imposed on each such transfer of an interest in the conduit entity for consideration at the rate of 70 cents for each $100 or fraction thereof of the consideration paid or given in exchange for the ownership interest in the conduit entity. 3. When an ownership interest is transferred in a conduit entity that owns assets other than the real property conveyed to the conduit entity, the tax shall be prorated based on the percentage the value of such real property represents of the total value of all assets owned by the conduit entity. 4. A gift of an ownership interest in a conduit entity is not subject to tax to the extent there is no consideration. The transfer of shares or similar equity interests in a conduit entity which are dealt in or traded on public, regulated security exchanges or markets is not subject to tax under this paragraph. 5. The transfer for purposes of estate planning by a Page 8 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 "Full consideration" means the consideration that would be paid in an arm's length transaction between unrelated

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natural person of an interest in a conduit entity to an irrevocable grantor trust as described in subpart E of part I of subchapter J of chapter 1 of subtitle A of the United States Internal Revenue Code is not subject to tax under this paragraph. 6. The purpose of this paragraph is to impose the documentary stamp tax on the transfer for consideration of a beneficial interest in real property. The provisions of this paragraph are to be construed liberally to effectuate this purpose. (c) Conversion or merger of a trust that is not a legal entity that owns real property in this state into a legal entity shall be treated as a conveyance of the real property for the purposes of this section. (d) Taxes imposed by this subsection shall be paid pursuant to s. 201.133 when no document is recorded. If a document is recorded, taxes imposed by the paragraph shall be paid as required for all other taxable documents that are recorded. (9) A certificate of title filed issued by the clerk of court under s. 45.031(6)(5) in a public judicial sale of real property under an order or final judgment issued pursuant to a foreclosure proceeding is subject to the tax imposed by subsection (1). However, the amount of the tax shall be computed based solely on the amount of the highest and best bid received for the property at the foreclosure sale. A final judgment of foreclosure vesting title in a lender under s. 702.068 is subject to the tax imposed by subsection (1) based upon a sale Page 9 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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price of $100. This subsection is intended to clarify existing law and shall be applied retroactively. Section 5. read: 701.04 (1)(a) Cancellation of mortgages, liens, and judgments. Within 15 14 days after the date on which a receipt Section 701.04, Florida Statutes, is amended to

of the written request for an estoppel statement is received from of a mortgagor, the holder of an interest in the property encumbered by a mortgage, or the designee of either, requesting a payoff amount for the mortgage as of a certain date, the holder of a mortgage shall provide a written estoppel statement executed by an officer or authorized agent of the holder of the mortgage deliver to the person making the request mortgagor at the a place, fax number, or e-mail address designated in the written request. The an estoppel statement shall set letter setting forth the following: 1. The unpaid balance of the loan secured by the mortgage, including principal, all accrued interest, and any other charges properly due under or secured by the mortgage as of the requested date certain. 2. and Interest on a per-day basis for the unpaid balance for a period of no less than 20 days after the date of delivery of the estoppel statement. 3. Certification that the party providing the estoppel statement is the holder of the original promissory note secured thereby, or is the person or agent of the person entitled to enforce the note pursuant to s. 673.3011, as the case may be. 4. A commitment to comply with subsection (3) upon timely Page 10 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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receipt of the amounts set forth in the estoppel statement. (b) The mortgagee may not charge a fee for the preparation or delivery of the first two estoppel statements requested for any one mortgage in any calendar month. This paragraph is not intended to limit requirements of federal law. (c) Subsequent owners of the property encumbered by the mortgage, and creditors and lienholders taking an interest in the property, for a valuable consideration, and those claiming by, through, and under them, may rely on the estoppel statement and shall be entitled to the benefits thereof. (d) Whenever the amount of money due on any mortgage or, lien is, or judgment shall be fully paid to the person or party entitled to the payment thereof, or all obligations secured by the mortgage or lien are otherwise satisfied, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment has shall have been made or satisfaction has been given, shall execute in writing an instrument acknowledging satisfaction of the said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the official records book provided by law for such purposes in the proper county. When the person or party executing the satisfaction is not shown as the owner of the mortgage in the official records, the instrument shall be supplemented by a sworn certification that the person executing the satisfaction was then in physical possession of the original promissory note secured by the mortgage or was then a person entitled to enforce the note pursuant to s. 673.3011 and, if the latter, shall provide the specific factual basis for such Page 11 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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authority. (e) If the written request for an estoppel statement is not from the mortgagor or the designee of the mortgagor, the request shall include a copy of the instrument or instruments showing the requestor's ownership interest in the property and the unpaid balance of the loan secured by the mortgage need not be itemized. (2)(a) Within 60 days after of the date of receipt of the full payment of the mortgage in accord with the estoppel statement, lien, or judgment, the person required to acknowledge satisfaction of the mortgage, lien, or judgment shall send or cause to be sent the recorded satisfaction to the maker of the promissory note, or such other person as may be designated in writing by the payor at or after the final payment, the recorded satisfaction and, in the case of the payor of a mortgage note, either: 1. 2. The original promissory note, marked "paid in full"; or A lost, destroyed, or stolen note affidavit together

with exhibits in compliance with s. 702.015 and evidence of adequate protections as provided in s. 702.11 person who has made the full payment. In the case of a civil action arising out of the provisions of this section, the prevailing party shall be entitled to attorney's fees and costs. (b) If the documents required by this subsection have not been delivered within 60 days, the party who received payment on the note or mortgage shall pay to the maker of the promissory note or its designee a fee in the amount of $100 per day for each day beyond 60 days that the documents have not been Page 12 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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delivered. The aggregate fees under this paragraph may not exceed $5,000. (3)(2) Whenever a writ of execution has been issued, docketed, and indexed with a sheriff and the judgment upon which it was issued has been fully paid, it shall be the responsibility of the party receiving payment to request, in writing, addressed to the sheriff, return of the writ of execution as fully satisfied. (4) A summary procedure pursuant to s. 51.011 may be brought to compel compliance with the various obligations and duties of this section, and the prevailing party shall recover reasonable attorney fees and costs. The court may limit recovery of attorney fees and costs when an unreasonable number of requests for estoppel statements has been made. Section 6. to read: 701.045 (1) Cancellation of liens and judgments. Whenever the amount of money due on any lien, other Section 701.045, Florida Statutes, is created

than a mortgage, or judgment is fully paid to the person or party entitled to such payment, the creditor or assignee, or the attorney of record in the case of a judgment, to whom such payment has been made shall execute in writing an instrument acknowledging satisfaction of the lien or judgment and have it acknowledged, or proven, and duly entered of record in the official records in the proper county. Within 60 days after the date of receipt of the full payment of the lien or judgment, the person required to acknowledge satisfaction of the lien or judgment shall send or cause to be sent the recorded Page 13 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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satisfaction to the person who has made the full payment. In the case of a civil action arising out of this section, the prevailing party shall be entitled to attorney fees and costs. (2) Whenever a writ of execution has been issued, docketed, and indexed with a sheriff and the judgment upon which it was issued has been fully paid, it shall be the responsibility of the party receiving payment to request, in writing and addressed to the sheriff, return of the writ of execution as fully satisfied. (3) The party receiving full payment of any judgment shall Section 702.015, Florida Statutes, is created also comply with s. 55.206, as appropriate. Section 7. to read: 702.015 Elements of complaint; lost, destroyed, or stolen note affidavit.Any complaint which seeks to foreclose a lien on real property which secures a promissory note must contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage or allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011. When a party has been delegated the authority to institute a mortgage foreclosure action on behalf of the holder of the note, the complaint shall describe the authority of the plaintiff and identify, with specificity, the document that grants the plaintiff the authority to act on behalf of the holder of the note. (1) Unless the complaint includes a count to enforce a Page 14 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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lost, destroyed, or stolen instrument, the plaintiff shall cause to be filed with the court, contemporaneously with and as a condition precedent to the filing of the complaint for foreclosure, either: (a) (b) The original promissory note; or Certification, under penalty of perjury, that the

plaintiff is in physical possession of the original promissory note. Such certification must set forth the physical location of the note, the name and title of the individual giving the certification, and the name of the person who personally verified such physical possession and the time and date on which possession was verified. Correct copies of the note and all allonges thereto shall be attached to the certification. The original note shall be filed with the court prior to the entry of any judgment of foreclosure or judgment on such note. (2) When the complaint includes a count to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury shall be attached to the complaint. The affidavit shall: (a) (b) Detail a clear chain of all assignments for the Set forth facts showing that the plaintiff is entitled promissory note that is the subject of the action. to enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091. (c) Include as exhibits to the affidavit such copies of the note and allonges thereto, assignments of mortgage, audit reports showing physical receipt of the original note, or other evidence of the acquisition, ownership, and possession of the Page 15 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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note as may be available to the plaintiff. (3) Following dismissal of the foreclosure case without prejudice and without completion of the foreclosure, and upon request of the plaintiff, the clerk may return the original promissory note to the plaintiff without need for further order of the court. Section 8. to read: 702.035 (1) Legal notice concerning foreclosure proceedings. The foreclosing party only in a mortgage foreclosure Section 702.035, Florida Statutes, is amended

action involving an occupied residential real property, including individual units of condominiums and cooperatives, designated principally for occupation by from one to four families, but not including an interest in a timeshare property the foreclosure of which is governed by part III of chapter 721, shall provide notice substantially in accordance with this section to: (a) (b) tenants. (2) (a) The notice required under paragraph (1)(a) shall: Be delivered with the summons and complaint. Such Any mortgagor having an interest in the property and All tenants of a dwelling unit in the property if the the record title owners of the property; and foreclosing party is seeking to foreclose the interest of the

notice shall be in 14-point boldfaced type and the title of the notice shall be in 20-point boldfaced type. The notice shall be on its own page. (b) Appear as follows: Page 16 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 SOURCES OF INFORMATION AND ASSISTANCE: The state encourages you to become informed about your options in foreclosure. You should contact a licensed Florida attorney to assist you. If you cannot afford an attorney, your local legal aid office may be able to assist you at little or no cost to you. There are also government agencies and nonprofit organizations Page 17 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 YOU MUST RESPOND BY PREPARING A DOCUMENT KNOWN AS AN ANSWER AND DELIVERING A COPY OF THE ANSWER TO THE ATTORNEY FOR THE PLAINTIFF (LENDER) AND FILING THE ORIGINAL ANSWER WITH THE COURT WITHIN 20 DAYS AFTER BEING SERVED. THERE IS NO CHARGE FOR FILING AN ANSWER. A TELEPHONE CALL OR E-MAIL TO THE ATTORNEY FOR THE PLAINTIFF WILL NOT SATISFY THE REQUIREMENT TO FILE AN ANSWER. THIS LAWSUIT DOES NOT MEAN THAT YOU MUST IMMEDIATELY MOVE OUT OF YOUR PROPERTY. If you fail to respond to the summons and complaint in this foreclosure action, you may lose your home. Please read the summons and complaint carefully. You should immediately contact an attorney or your local legal aid office to obtain advice on how to protect yourself. Sending a payment to your mortgage company will not stop this foreclosure action. NOTICE: YOU ARE IN DANGER OF LOSING YOUR HOME

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that you may contact for cost-free information about possible options, including trying to work with your lender during this process. FORECLOSURE RESCUE SCAMS: Be careful of people who approach you with offers to help you keep your home. There are individuals who watch for notices of foreclosure actions in order to unfairly profit from a homeowner's distress. You should be extremely careful about any such promises and any suggestions that you pay them a fee or deed over your property. State law requires any nonattorney offering such services for profit to enter into a contract which fully describes the services they will perform and fees they will charge, and which prohibits them from taking any money from you until they have completed all such promised services. (3) (a) The notice to any tenant required under paragraph Be delivered with the summons and complaint. The

(1)(b) shall: foreclosing party shall provide its name, address, and telephone number on the notice. The title of the notice shall be in 14point boldfaced type. The notice shall be on its own page. (b) Appear substantially as follows: NOTICE TO TENANTS OF BUILDINGS IN FORECLOSURE Page 18 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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Florida law requires that we provide you with this notice about the foreclosure process. Please read it carefully. We, ...(name of foreclosing party)..., are the foreclosing party and are located at ...(foreclosing party's address).... We can be reached at ...(foreclosing party's telephone number).... The property you are renting is the subject of a foreclosure proceeding. You should file an answer to this summons and complaint and deliver a copy of the answer to the attorney for the plaintiff and file the original with the court within 20 days after being served. There is no charge for filing an answer. A telephone call or an e-mail to the attorney for the plaintiff will not satisfy the requirement of filing an answer. If you have a written lease and are not the owner of the residence, and the lease requires payment of rent that at the time it was entered into was not substantially less than the fair market rent for the property, you may be entitled to remain in occupancy under the federal Protecting Tenants at Foreclosure Act of 2009, as amended. If you do not have a written lease, under the same federal law you may be entitled to remain in your home until 90 days after the person or entity that acquires title to the property provides you with a notice. If you are a subsidized tenant Page 19 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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under federal, state, or local law or if you are a tenant subject to rent control, rent stabilization, or a federal statutory scheme, you may have other rights. If the federal Protecting Tenants at Foreclosure Act of 2009, as amended, and these other laws do not apply to your situation, you may be required to vacate the property upon completion of the foreclosure. The filing of a foreclosure action does not automatically cease your obligation to pay rent to your landlord. You should contact a licensed Florida attorney to understand your rights. If you cannot afford an attorney, your local legal aid office may be able to assist you at little or no cost to you. (4) (5) Only a single notice is required under this section Whenever a legal advertisement, publication, or notice

for any party defendant. relating to a foreclosure proceeding is required to be placed in a newspaper, it is the responsibility of the petitioner or petitioner's attorney to place such advertisement, publication, or notice. For counties having with more than 1 million total population as reflected in the 2000 Official Decennial Census of the United States Census Bureau as shown on the official website of the United States Census Bureau, any notice of publication required by this section shall be deemed to have been published in accordance with the law if the notice is published in a newspaper that has been entered as a periodical matter at a post office in the county in which the newspaper is published, is Page 20 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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published a minimum of 5 days a week, exclusive of legal holidays, and has been in existence and published a minimum of 5 days a week, exclusive of legal holidays, for 1 year or is a direct successor to a newspaper that has been in existence for 1 year that has been published a minimum of 5 days a week, exclusive of legal holidays. The advertisement, publication, or notice shall be placed directly by the attorney for the petitioner, by the petitioner if acting pro se, or by the clerk of the court. Only the actual costs charged by the newspaper for the advertisement, publication, or notice may be charged as costs in the action. Section 9. to read: 702.036 (1)(a) Finality of mortgage foreclosure judgment. In any action or proceeding in which a party seeks Section 702.036, Florida Statutes, is created

to set aside, invalidate, or challenge the validity of a final judgment of foreclosure of a mortgage or to establish or reestablish a lien or encumbrance on the property in abrogation of the final judgment of foreclosure of a mortgage, the court shall treat such request solely as a claim for monetary damages and may not grant relief that adversely affects the quality or character of the title to the property, if: 1. 2. A final judgment of foreclosure of a mortgage was All applicable appeals periods have run as to the final entered as to a property; judgment of foreclosure of a mortgage with no appeals having been taken, or any appeals having been finally resolved; 3. The property has been acquired for value, by a person Page 21 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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not affiliated with the foreclosing lender, at a time in which no lis pendens regarding the suit to set aside, invalidate, or challenge the foreclosure appears in the official records of the county where the property was located; and 4. The party seeking relief from the final judgment of foreclosure of a mortgage was properly served in the foreclosure lawsuit as provided in chapter 48 or chapter 49. (b) This subsection does not limit the right to pursue any other relief to which a person may be entitled, including, but not limited to, compensatory damages, punitive damages, statutory damages, consequential damages, injunctive relief, or fees and costs, which does not adversely affect the ownership of the title to the property as vested in the unaffiliated purchaser for value. (2) For purposes of this section, the following, without limitation, shall be considered persons affiliated with the foreclosing lender: (a) (b) (c) The foreclosing lender or any loan servicer for the Any past or present owner or holder of the loan being Any maintenance company, holding company, foreclosure loan being foreclosed; foreclosed; services company, or law firm under contract to any entity listed in paragraph (a), paragraph (b), or this paragraph, with regard to the loan being foreclosed; or (d) Any parent, entity, subsidiary, or other person who directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, Page 22 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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any entity listed in paragraph (a), paragraph (b), or paragraph (c). (3) After foreclosure of a mortgage based upon the enforcement of a lost, destroyed, or stolen note, a person who is not a party to the underlying foreclosure action but who claims to be the actual holder of the promissory note secured by the foreclosed mortgage shall have no claim against the foreclosed property after it has been conveyed for valuable consideration to a person not affiliated with the foreclosing lender. This section does not preclude the actual holder of the note from pursuing recovery from any adequate protection given pursuant to s. 673.3091 or from the party who wrongfully claimed to be the owner or holder of the promissory note, the maker of the note, or any other person against whom it may have a claim relating to the note. Section 10. to read: 702.04 Mortgaged Lands in different counties.When a mortgage or other lien includes lands, railroad track, right-ofway, or terminal facilities and station grounds, lying in two or more counties, it may be foreclosed in any one of those said counties, and all proceedings shall be had in that county as if all the mortgaged land, railroad track, right-of-way, or terminal facilities and station grounds lay therein, except that any notice of the sale must be published in every county wherein any of the lands, railroad track, right-of-way, or terminal facilities and station grounds to be sold lie. After final disposition of the suit, the clerk of the circuit court shall Page 23 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 Section 702.04, Florida Statutes, is amended

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prepare and forward a certified copy of the decree of foreclosure, and the certificates of title, if any, and sale and of the decree of confirmation of sale to the clerk of the circuit court of every county wherein any of the mortgaged lands, railroad tracks, right-of-way, or terminal facilities and station grounds lie, to be recorded in the official records foreign judgment book of each such county, and the costs of such copies and of the recording record thereof shall be taxed as costs in the cause. Section 11. to read: 702.06 deficiency. (1) In all suits for the foreclosure of mortgages heretofore or hereafter executed, the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a deficiency judgment provided no suit at law to recover such deficiency shall be maintained against the original mortgagor in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree against the original mortgagor. (2)(a) In respect to an owner-occupied one-family to fourPage 24 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 family dwelling unit, the party to whom a deficiency is owing Deficiency decree; common-law suit to recover Section 702.06, Florida Statutes, is amended

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may move for the entry of a deficiency judgment in the foreclosure action or file a separate action for collection of the deficiency, no later than 1 year after the property has vested in the foreclosing lender or other purchaser at the foreclosure sale, or October 1, 2013, whichever is later. (b) If a deficiency is not pursued within the time periods specified in this section, the vesting of the property pursuant to s. 702.068 or proceeds of the sale, regardless of the amount, shall be deemed to be in full satisfaction of the mortgage debt and a right to recover any deficiency in any subsequent action or proceeding shall be extinguished. (c) This subsection does not restrict the authority of the court to determine the entitlement to any assets held by any receiver or any assignee of the rents and profits of the property. Section 12. to read: 702.062 conference. (1) In any mortgage foreclosure proceeding, other than a proceeding seeking foreclosure of a timeshare interest under part III of chapter 721, the plaintiff's counsel shall cause to be filed with the clerk of the court a notice of any extensions of time for a party to respond to an initial complaint which may be granted. Such notice shall be filed within the later of 5 days after the granting of such extension or 60 days after the effective date of this act and may be made by copy of the letter confirming the extension. This requirement is not intended to Page 25 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 Notice of extensions; defaults; case management Section 702.062, Florida Statutes, is created

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discourage any party from requesting or granting such extensions of time. (2) (a) (b) Any party may notify the court and all parties as to All parties defendant have been served personally by No party defendant has filed an answer or other any foreclosure proceeding in which the file indicates: substituted service or by publication; and response denying, contesting, or asserting defenses to the plaintiff's entitlement to the foreclosure, and the time has run for the entry of defaults against all nonresponding parties defendant. (3) The court, on its own motion or motion of any party, may enter defaults against nonresponding parties in accordance with the Florida Rules of Civil Procedure and shall direct the plaintiff in the foreclosure action to file all affidavits, certifications, and proofs necessary or appropriate for the entry of a summary judgment of foreclosure within a time certain or show cause why such a filing should not be made. The filing of these materials shall be construed as a motion for summary judgment, and the court may thereafter enter final summary judgment or set the case for trial in accord with its sound judicial discretion. This subsection does not restrict the authority of the court to set aside a default or a judgment granted thereon pursuant to the Florida Rules of Civil Procedure. (4) After all parties have been served and not earlier than 48 days after the filing of the foreclosure case, any party may request a case management conference at which the court Page 26 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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shall set definite timetables for moving the case forward. (5) The court may grant extensions or stays in the proceedings on a showing that the plaintiff and property owner defendant are engaged in mediation or good faith negotiations with regard to a loan modification or other settlement or otherwise as justice may require. The court may condition an extension or stay on the property owner or the lender, if it so chooses, paying any condominium or homeowners' association assessments coming due after the date of the extension or stay and keeping such assessments paid current through the conclusion of the foreclosure action. Section 13. to read: 702.065 Final judgment in uncontested mortgage foreclosure proceedings where deficiency judgment waived; attorney attorney's fees when default judgment entered. (1) In uncontested mortgage foreclosure proceedings in which the mortgagee waives the right to recoup any deficiency judgment, the court shall enter final judgment within 90 days after from the date of the close of pleadings. For the purposes of this subsection, a mortgage foreclosure proceeding is uncontested if a default has been entered against all defendants or no response an answer not contesting the foreclosure has been timely filed or a default judgment has been entered by the court. (2) In a mortgage foreclosure proceeding, when a default judgment has been entered against the mortgagor and the note or mortgage provides for the award of reasonable attorney Page 27 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 Section 702.065, Florida Statutes, is amended

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attorney's fees, it is not necessary for the court to hold a hearing or adjudge the requested attorney attorney's fees to be reasonable if the fees do not exceed the greater of 1.5 3 percent of the principal amount owed at the time of filing the complaint or $1,500, even if the note or mortgage does not specify the percentage of the original amount that would be paid as liquidated damages. Such fees constitute liquidated damages in any proceeding to enforce the note or mortgage. This section does not preclude a challenge to the reasonableness of the attorney attorney's fees. Section 14. to read: 702.068 public sale. (1) When the amount of principal and interest, exclusive of fees and costs, owed to a foreclosing lender equals or exceeds 120 percent of the just value of the property subject to foreclosure, as determined by the county property appraiser in the most recent certified tax roll, the foreclosing lender may elect to foreclose without a public sale of the property under chapter 45. Except as otherwise provided in this subsection, nothing in this section alters any aspect of the judicial foreclosure proceeding; the rights, remedies, and defenses available to the parties; the court rules and procedures to be followed; or the authority of the court to supervise and manage the foreclosure case. (2) A plaintiff electing to proceed without a public sale Page 28 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 may include the request to proceed under this section in any Election by foreclosing lender to proceed without Section 702.068, Florida Statutes, is created

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complaint or amended complaint filed, or the plaintiff or any other party may file a motion to proceed under this section at any time prior to the entry of a final judgment of foreclosure. (3) Upon making the election to foreclose without a public sale, the party making the election shall cause notices to be sent to each party, other than the party sending the notice, as follows: (a) If the election to proceed without a public sale is made in the complaint, the notice shall be served together with the complaint on the defendants as provided in chapter 48 or chapter 49. If the election is made after the initial service of the complaint, the notice shall be served on any party against whom a default has been entered as provided in chapter 48 or chapter 49 and served on other parties as provided in the Florida Rules of Civil Procedure. If service is by publication, the published notice shall indicate that "the plaintiff has elected to proceed without a public sale as provided under section 702.068, Florida Statutes." (b) The notice provided to the owners of the property, tenants, holders of subordinate liens and other interests in the property, and any other defendants shall be on its own page, in 14-point boldfaced type and the title of the notice shall be in 20-point boldfaced type, and in substantially the following form: NOTICE OF FORECLOSURE WITHOUT PUBLIC SALE Florida Law requires that we provide you notice Page 29 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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that this foreclosure may proceed without a public sale. Please read it carefully. You have been identified as the owner of, the holder of a mortgage or lien on, or otherwise having an interest in property located at ...(property address)... which is subject to foreclosure. You are hereby notified that ...(name and address of plaintiff)... has filed a foreclosure lawsuit with regard to the property and has elected to proceed without a public sale pursuant to section 702.068, Florida Statutes. Under this provision, after the entry of a final judgment of foreclosure the property will vest automatically in the foreclosing lender. There will not be a public sale of the property, and you may lose your equity in this property or any equity that would be available to pay subordinate liens you may hold. At any time prior to the entry of a final judgment of foreclosure, you may demand a traditional public sale in order to protect any equity in the property, but anyone making such a demand will initially be responsible for paying $450 towards the costs of advertising, notice, and other expenses relating to that public sale. Under certain circumstances, those costs may be repaid from the proceeds of the public sale. NOTE: The right to demand a public sale at any Page 30 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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time prior to the entry of a final judgment does not extend the 20-day period to initially respond to the complaint. If you have any questions about this notice or the lawsuit, you should immediately consult a licensed Florida attorney. (c) The notice in paragraph (b) is informational only.

Nonmaterial defects in the content of this notice do not invalidate any title vested without a public sale under this section, as long as proper service has been obtained. (d) The election to proceed without a public sale and the delivery of notices may occur not later than 15 days before the entry of a final judgment of foreclosure. (4) At any time before the entry of a final order of foreclosure without a public sale, any party may demand a public sale by filing a demand for such with the clerk of the court. If a public sale is demanded, the court shall proceed with the foreclosure and sale under other applicable law. The party demanding a public sale under this section shall contemporaneously deposit with the clerk $450 conditioned to pay all costs of noticing and advertising the public sale and any clerk's fee or other service fees charged in connection with the public sale. (a) If the price returned at the public sale exceeds the amount determined in the final judgment to be owed under the mortgage to the foreclosing lender, including principal, accrued interest, expenses, attorney fees and costs, and the costs of Page 31 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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noticing and advertising the sale, any clerk's fees or other service fees shall be taxed as costs and reimbursed to the party making the cost deposit, up to the amount of such deposit. (b) If the price returned at the public sale does not exceed the amount owed under the mortgage to the foreclosing lender, the cost deposit shall be applied to repay the foreclosing lender for the actual costs of noticing and advertising the public sale and any clerk's fees and other service fees, with any excess being returned to the party making the cost deposit. (5) Upon finding that all requirements of this section and conditions for the granting of a final judgment of foreclosure have been satisfied, and no public sale has been demanded, the court may, as is consistent with justice and sound judicial discretion, enter a final judgment in foreclosure. (a) The final judgment shall take effect no sooner than 10 days after the entry thereof and, upon the recording of the certificate of title issued pursuant to paragraph (d), shall vest all of the owners' right, title, and interest in and to the property subject to foreclosure in the plaintiff or plaintiff's designee as identified in the final judgment, and, if so found by the court, that each defendant and all persons claiming under or against each defendant since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property, except as to claims or rights under chapter 718 or chapter 720, if any. (b) The owner or any party defendant may redeem the Page 32 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 property at any time prior to the final judgment becoming

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effective. Upon redemption: 1. The clerk shall cause a notice of redemption to be filed in the court records and in the official records and to cause an order, if any, approving or ratifying the redemption to be filed in the official records; and 2. (c) The plaintiff shall cause the mortgage to be satisfied The final judgment shall recite the just value of the of record. property as determined by the county property appraiser and include a finding that the principal and accrued interest owed to the foreclosing lender equals or exceeds 120 percent of the just value. (d) After the time provided in the final judgment for redemption, and provided redemption has not occurred, the clerk shall issue a certificate of title vesting title to the property in the foreclosing plaintiff or its designee. (6) When the foreclosing lender elects to foreclose without a public sale, upon entry of a judgment and issuing the certificate of title under this section, the debt that was secured by the foreclosed mortgage shall be deemed satisfied and any right to pursue a deficiency decree or other action to enforce such note is waived. When a party defendant elects to proceed without a public sale, the plaintiff may pursue a deficiency if and as otherwise permitted by law. Section 15. to read: 702.10 Order to Show cause; entry of final judgment of Page 33 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 foreclosure; payment during foreclosure. Section 702.10, Florida Statutes, is amended

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(1)

After a complaint in a foreclosure proceeding has been

filed which is verified in the form of an affidavit sufficient to support a motion for summary judgment, the plaintiff mortgagee may request a hearing to show cause an order to show cause for the entry of final judgment and the court shall immediately review the complaint. Upon such request, the clerk If, upon examination of the complaint, the court finds that the complaint is verified and alleges a cause of action to foreclose on real property, the court shall promptly issue a summons an order directed to each the defendant to show cause why a final judgment of foreclosure should not be entered. (a) 1. The summons order shall: Set the date and time for a hearing on the order to

show cause. However, the date for the hearing may not occur be set sooner than the later of 20 days after the service of the summons or 45 days after the service of the complaint order. When service is obtained by publication, the date for the hearing may not be set sooner than 55 30 days after the first publication. The hearing must be held within 60 days after the date of service. Failure to hold the hearing within such time does not affect the validity of the order to show cause or the jurisdiction of the court to issue subsequent orders. 2. 2.3. Direct the time within which service of the order to State that the filing of defenses by a motion or by a show cause and the complaint must be made upon the defendant. responsive pleading verified or sworn answer at or before the hearing to show cause may constitute constitutes cause for the court not to enter the attached final judgment. Page 34 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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3.4.

State that any the defendant has the right to file

affidavits or other papers at or before the time of the hearing to show cause and may appear personally or by way of an attorney at the hearing. 4.5. motion. 5.6. State that, if any the defendant fails to appear at the hearing to show cause or fails to file a response defenses by a motion or by a verified or sworn answer or files an answer not contesting the foreclosure, the defendant shall may be deemed considered to have waived the right to a hearing and in such case the court shall, unless the record shows that the relief is unavailable, may enter a final judgment of foreclosure ordering the clerk of the court to conduct a foreclosure sale. 6.7. State that if the mortgage provides for reasonable attorney attorney's fees and the requested attorney attorney's fees do not exceed the greater of 1.5 3 percent of the principal amount owed at the time of filing the complaint or $1,500, it is unnecessary for the court to hold a hearing or adjudge the requested attorney attorney's fees to be reasonable. 7.8. Attach the proposed final judgment of foreclosure the plaintiff requests the court to will enter, if the defendant waives the right to be heard at the hearing on the order to show cause. 8.9. Require the plaintiff mortgagee to serve a copy of the summons order to show cause on each defendant the mortgagor in the following manner: Page 35 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 State that, if any the defendant files defenses by a motion, the hearing time may be used to hear the defendant's

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a.

If a defendant the mortgagor has been served with the

complaint and original process, service of the summons to show cause on that defendant order may be made in the manner provided in the Florida Rules of Civil Procedure. b. If a defendant the mortgagor has not been served with the complaint and original process, the summons order to show cause, together with the summons and a copy of the complaint, shall be served on the defendant mortgagor in the same manner as provided by law for original process. Any final judgment of foreclosure entered under this subsection is for in rem relief only. Nothing in this subsection shall preclude the entry of a deficiency judgment where otherwise allowed by law. (b) The right to be heard at the hearing to show cause is waived if a the defendant, after being served as provided by law with a an order to show cause summons, fails to file a response contesting the foreclosure engages in conduct that clearly shows that the defendant has relinquished the right to be heard on that order. The defendant's failure to file defenses by a motion or by a sworn or verified answer or fails to appear at the hearing duly scheduled on the order to show cause summons presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard. If a defendant files a response contesting the foreclosure defenses by a motion or by a verified or sworn answer at or before the hearing, such response may constitute action constitutes cause upon the determination of the court as set forth in paragraph (d) and may Page 36 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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preclude precludes the entry of a final judgment at the hearing to show cause. (c) In a mortgage foreclosure proceeding, when a default judgment has been entered against the mortgagor and the note or mortgage provides for the award of reasonable attorney attorney's fees, it is unnecessary for the court to hold a hearing or adjudge the requested attorney attorney's fees to be reasonable if the fees do not exceed the greater of 1.5 3 percent of the principal amount owed on the note or mortgage at the time of filing of the complaint or $1,500, even if the note or mortgage does not specify the percentage of the original amount that would be paid as liquidated damages. (d) If the court finds that each the defendant has waived the right to be heard as provided in paragraph (b), the court shall promptly enter a final judgment of foreclosure without the need for a further hearing upon either the filing with the court of the original note or satisfaction of the conditions for establishment of the lost note pursuant to law. If the court finds that a the defendant has not waived the right to be heard on the order to show cause, the court shall then determine whether there is cause not to enter a final judgment of foreclosure. If the court finds that a the defendant has not shown cause, the court shall promptly enter a judgment of foreclosure. (2) In an action for a mortgage foreclosure, on properties other than a homestead other than residential real estate, the mortgagee may request that the court enter an order directing the mortgagor defendant to show cause why an order to make Page 37 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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payments during the pendency of the foreclosure proceedings or an order to vacate the premises should not be entered. (a) 1. The order shall: Set the date and time for hearing on the order to show

cause. However, the date for the hearing shall not be set sooner than 20 days after the service of the order. Where service is obtained by publication, the date for the hearing shall not be set sooner than 30 days after the first publication. 2. Direct the time within which service of the order to show cause and the complaint shall be made upon each the defendant. 3. State that a the defendant has the right to file affidavits or other papers at the time of the hearing and may appear personally or by way of an attorney at the hearing. 4. State that, if a the defendant fails to appear at the hearing to show cause and fails to file defenses by a motion or by a verified or sworn answer, the defendant may be deemed to have waived the right to a hearing and in such case the court may enter an order to make payment or vacate the premises. 5. a. Require the mortgagee to serve a copy of the order to If the mortgagor has been served with the complaint and show cause on the mortgagor in the following manner: original process, service of the order may be made in the manner provided in the Florida Rules of Civil Procedure. b. If the mortgagor has not been served with the complaint and original process, the order to show cause, together with the summons and a copy of the complaint, shall be served on the mortgagor in the same manner as provided by law for original Page 38 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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process. (b) The right of a defendant to be heard at the hearing to show cause is waived if the defendant, after being served as provided by law with an order to show cause, engages in conduct that clearly shows that the defendant has relinquished the right to be heard on that order. A The defendant's failure to file defenses by a motion or by a sworn or verified answer or to appear at the hearing duly scheduled on the order to show cause presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard. (c) If the court finds that a the defendant has waived the right to be heard as provided in paragraph (b), the court may promptly enter an order requiring payment in the amount provided in paragraph (f) or an order to vacate. (d) If the court finds that the mortgagor has not waived the right to be heard on the order to show cause, the court shall, at the hearing on the order to show cause, consider the affidavits and other showings made by the parties appearing and make a determination of the probable validity of the underlying claim alleged against the mortgagor and the mortgagor's defenses. If the court determines that the mortgagee is likely to prevail in the foreclosure action, the court shall enter an order requiring the mortgagor to make the payment described in paragraph (e) to the mortgagee and provide for a remedy as described in paragraph (f). However, the order shall be stayed pending final adjudication of the claims of the parties if the mortgagor files with the court a written undertaking executed by a surety approved by the court in an amount equal to the unpaid Page 39 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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balance of the mortgage on the property, including all principal, interest, unpaid taxes, and insurance premiums paid by the mortgagee. (e) In the event the court enters an order requiring the mortgagor to make payments to the mortgagee, payments shall be payable at such intervals and in such amounts provided for in the mortgage instrument before acceleration or maturity. The obligation to make payments pursuant to any order entered under this subsection shall commence from the date of the motion filed hereunder. The order shall be served upon the mortgagor no later than 20 days before the date specified for the first payment. The order may permit, but shall not require the mortgagee to take all appropriate steps to secure the premises during the pendency of the foreclosure action. (f) In the event the court enters an order requiring payments the order shall also provide that the mortgagee shall be entitled to possession of the premises upon the failure of the mortgagor to make the payment required in the order unless at the hearing on the order to show cause the court finds good cause to order some other method of enforcement of its order. (g) All amounts paid pursuant to this section shall be credited against the mortgage obligation in accordance with the terms of the loan documents, provided, however, that any payments made under this section shall not constitute a cure of any default or a waiver or any other defense to the mortgage foreclosure action. (h) Upon the filing of an affidavit with the clerk that Page 40 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 the premises have not been vacated pursuant to the court order,

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the clerk shall issue to the sheriff a writ for possession which shall be governed by the provisions of s. 83.62. (i) For purposes of this section, there is a rebuttable presumption that a residential property for which a homestead exemption for taxation was granted according to the certified rolls of the latest assessment by the county property appraiser, before the filing of the foreclosure action, is a homestead residence. (3) This section does not supersede or limit other procedures adopted by the court, including, but not limited to, mandatory mediation and alternative dispute resolution processes. Section 16. to read: 702.11 (1) Adequate protections for lost, destroyed, or stolen notes in mortgage foreclosure. In connection with the mortgage foreclosure of a onefamily to four-family residential property, the following constitute reasonable means of providing adequate protection under s. 673.3091: (a) A written indemnification agreement by a person reasonably believed sufficiently solvent to honor such an obligation; (b) (c) (d) court; or (e) Such other security as the court may deem appropriate Page 41 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 A surety bond; A letter of credit issued by a financial institution; A deposit of cash collateral with the clerk of the Section 702.11, Florida Statutes, is created

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under the circumstances. Any security given shall be on terms and in amounts set by the court, for a time period through the running of the statute of limitations for enforcement of the underlying note, and conditioned to indemnify and hold harmless the maker of the note against any loss or damage, including principal, interest, and attorney fees and costs, that might occur by reason of a claim by another person to enforce the note. (2) Any person who wrongly claimed to be the holder of or pursuant to s. 673.3011 to be entitled to enforce a lost, stolen, or destroyed note and caused the mortgage secured thereby to be foreclosed shall be liable to the actual holder of the note, without limitation to any adequate protections given, for actual damages suffered together with attorney fees and costs of the actual holder of the note in enforcing rights under this subsection. (a) The actual holder of the note is not required to pursue recovery against the maker of the note or any guarantor thereof as a condition precedent to pursuing remedies under this subsection. (b) This subsection does not limit or restrict the ability of the actual holder of the note to pursue any other claims or remedies it may have against the maker, the person who wrongly claimed to be the holder, or any person who facilitated or participated in the claim to the note or enforcement thereof. Section 17. to read: Page 42 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 Section 702.12, Florida Statutes, is created

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702.12

Attorney fee as sanctions for raising unsupported

claims or defenses; exceptions; service of motions; damages for delay of litigation. (1) In any mortgage foreclosure action, upon the court's initiative or motion of any party, the court shall award a reasonable attorney fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) (b) (2) Was not supported by the material facts necessary to Would not be supported by the application of thenAt any time in any civil proceeding or action in which establish the claim or defense; or existing law to those material facts. the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney fees, and other loss resulting from the improper delay. (3) Notwithstanding subsections (1) and (2), monetary Page 43 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00

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sanctions may not be awarded: (a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. (b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party's attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. (c) (4) Under paragraph (1)(b) against a represented party. A motion by a party seeking sanctions under this

section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. (5) rules. Section 18. This act does not apply to the foreclosure of liens on timeshare interests under the Timeshare Lien Foreclosure Act, part III of chapter 721, Florida Statutes. Section 19. The Division of Statutory Revision is directed to replace the phrase "the effective date of this act" wherever it occurs in this act with the date this act becomes a law. Section 20. this act. Page 44 of 45 CODING: Words stricken are deletions; words underlined are additions. hb0213-00 This act is intended to be remedial in nature and shall apply to any action filed after the effective date of The provisions of this section are supplemental to other sanctions or remedies available under law or under court

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Section 21.

This act shall take effect October 1, 2012.

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